On Point

court of appeals decision (3-judge; not recommended for publication); BiC; Resp. Br.; Reply Br.

Conditional Jail Time
“Applying the plain language of § 973.09(4)(a), it is clear that straight confinement time may be imposed as a condition of probation, and that although the trial court ‘may grant’ work-release privileges, it is not required to do so.” It follows that such privileges may be revoked,

court of appeals decision (3-judge; not recommended for publication); BiC; Resp. Br.; Reply Br.

Ineffective Assistance
Machner hearing not required because record “conclusively demonstrates” no deficient performance; nor can prejudice be shown from asserted deficiency.

court of appeals decision (1-judge; not for publication)

Traffic Stops
No seizure, given that police neither “prompted” Hennessey to park car not blocked him in; therefore reasonable suspicion not necessary to approach car.

decision below: 2009 WI App 143; for Conner: Steven J. House

Issues:

What degree of specificity is required in charging dates of allege conduct in a criminal information to satisfy the accused’s constitutional due process rights of notice of the charged offenses?

Does Wis. Stat. § 940.32(2m)(b) require that the state prove that a “course of conduct,” constituting two or more acts, occur after the operative prior conviction in order to establish a violation of the aggravated stalking offense?

decision below: 2009 WI App 161; for Patterson: David R. Karpe

Issues:

Is contributing to the delinquency of a child resulting in death a lesser-included offense of first-degree reckless homicide under Wis. Stat. § 939.66(2)?

Can one contribute to the delinquency of a 17-year-old individual when such individuals are no longer subject to juvenile delinquency petitions?

Was a reckless homicide jury instruction defective because it gave as an element to be proved that the deceased used and died from a substance “alleged to have been delivered by the defendant?”

Was there prosecutorial misconduct in refreshing the recollection of witnesses with the testimony and statements of other witnesses?

decision below: 2010 WI App 11; for Forbush: Craig Mastantuono; Rebecca M. Coffee

Issues:

Whether the right to counsel under the Wisconsin Constitution prohibits the state from interrogating a represented individual once the state is aware of the representation

Whether a suspect made an equivocal request for counsel during police questioning, thereby invoking his right to counsel under the Wisconsin Constitution and requiring suppression of his confession at trial

Whether the circuit court’s suppression order should be affirmed without reaching the viability of State v.

Village of West Salem v. Low, 2009AP2654, Dist IV, 3/25/2010

court of appeal decision (1-judge; not for publication); BiC; Resp. Br.; Reply Br.

Challenge to OWI-1st in municipal court fails for want of jurisdiction, where judgment had been entered in circuit court because at the time no local municipal court existed.

An obscure problem, to be sure, but possibly of enough interest to be disseminated.

court of appeals decision (1-judge; not for publication); BiC; Resp. Br.; Reply Br.

Miranda – Traffic Stop – Marijuana Odor and Probable Cause
Suppression of passenger’s statement due to custodial interrogation without Miranda warnings leaves police without probable cause to arrest driver:

¶7        First, we will address the State’s argument that Kohel’s statement “[w]e just smoked an hour ago” was voluntary and should not be suppressed. 

7th circuit court of appeals decision

Habeas – Ineffective Assistance – Extraneous Juror Influence
1. Where both defendant and homicide victim were African-American, in-court proclamation from latter’s mother that “the situation is racist” is deemed to be “ambiguous and apparently innocuous.” It follows that counsel’s failure to pursue the matter was reasonable.

Remmer v. United States, 347 U.S. 227 (1954) (unauthorized extraneous contact with juror creates presumption of prejudice and thus requires hearing),

court of appeals decision (1-judge; not for publication); BiC; Resp. Br.

Instructions – Unanimity
Refusal to give unanimous verdict instruction re: continuing course of conduct (sexual assault) or mode of commission (ptac) upheld.

Evidence – Defendant’s Peaceful Character
Refusal to allow evidence of defendant’s peaceful character upheld, where the elements of the offense (4th degree sexual assault) didn’t involve violence.